Urian v. Urian

• Decision Date: 23 August 1954
• Docket Number: No. A--254,A--254
• Parties: URIAN v. URIAN. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 608

31 N.J.Super. 608

107 A.2d 558

URIAN v. URIAN.

No. A--254.

Superior Court of New Jersey Appellate Division.

Argued June 28, 1954.

Decided Aug. 23, 1954.

William Reich, Trenton, for plaintiff-respondent.

Nathan N. Schildkraut, Trenton, for defendant-appellant (Kahn & Schildkraut, Trenton, Attorneys).

Before Judges EASTWOOD, FREUND and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.A.D.

In this matrimonial cause the wife sought a judgment of separate maintenance. A counterclaim was filed by the husband containing two counts, one for a divorce on the ground of desertion, and the other demanding the return of one-half of certain United States Government bonds allegedly owned by them jointly. The trial court gave judgment to the wife, awarded $35 weekly for her support and a counsel fee of $500 and dismissed both counts of the counterclaim. The husband appeals.

The wife's complaint is lengthy and contains an elaborate recitation of facts relating to the marital discord. It charges the husband with an abandonment without justifiable cause in June 1935 and a failure to support. Then it alleges a resumption of cohabitation six months later and that about September 1941 Urian commenced a course of detailed cruel and inhuman treatment of her which continued until April 1942, when he again abandoned her without justifiable cause and remained away from her until July 1942, at which time he entered military service for a period of approximately twenty-seven months. Upon his discharge in August 1945 they resumed living together. However, it is then alleged that in April 1948 the husband resumed his improper treatment and finally 'deserted' her in December 1948. During this separation period he removed all his personal belongings from their apartment and took their automobile, which she had gone to work to help pay for. The complaint continues, asserting that the wife made several attempts to induce the husband to return. Among other things she went through a marriage ceremony in the husband's church, the original ceremony having been performed according to her religious faith. Cohabitation was resumed in June 1950.

It is then alleged that in January 1951 the husband again began a course of 'extremely cruel and inhuman' treatment toward her, the cruelty being described. In November 1951, after being assaulted and threatened, she left him. With respect to this leaving the allegation is:

'18. By reason of the long course of extremely cruel and inhuman treatment of the plaintiff at the hands of the defendant, the plaintiff's nerves became completely shattered, she became ill and no longer able to fulfill her duties as a wife, and fearing for her health and personal safety she separated herself from the defendant in the month of November 1951 and established her home separate and apart from him. Plaintiff has been in ill health ever since and under the care of a physician, and her health became impaired to such an extent that she became and still is disabled from earning her livelihood.

'19. On the 23rd day of September 1952, the plaintiff, believing that separation by her from the defendant for a period of approximately ten months might have worked a change in the attitude of the defendant towards her, sought out the defendant and asked him to effect a reconciliation with her to the end that they resume marital relations. The defendant refused to effect a reconciliation with the plaintiff. He stated to the plaintiff that he preferred living alone without her and that he would not permit her to return to his home.'

Additional general allegations of attempts at reconciliation by the wife and refusals by the husband are set forth. Then it is charged that in November 1951 Urian abandoned his wife and failed and refuses to support her.

The husband filed an even more elaborate factually detailed answer which, exclusive of the counterclaim, covers fifteen pages of the appendix. The counterclaim charges a desertion beginning September 1, 1950 based upon an alleged unjustified refusal to have sexual relations with him.

Thereafter an application for maintenance Pendente lite was made. Factually detailed affidavits were submitted on both sides in connection therewith.

Among other things the wife's affidavit, after referring to her attempts at reconciliation in September 1952, recited that 'My husband abandoned me on the 23rd day of September 1952, Without any justifiable cause, and has failed, neglected and refused ever since that time to provide for my support and maintenance.'

The husband's affidavit discussed at length the wife's visit to him on September 23, 1952 and denied that a reconciliation was requested by her. He admitted having received a letter from her dated September 26, 1952 pleading for a reconciliation but said in effect that he did not answer because he did not believe it to be sincere. And he denied an abandonment of his wife on September 23, 1952.

Attached to his wife's moving papers was an additional affidavit of an independent witness, a nephew of Mrs. Urian, which asserted that on November 25, 1952, he visited the husband and endeavored to induce a reconciliation but Urian retused.

Reference is made to the incidents of September and November 1952 primarily for the purpose of demonstrating that Urian was award of the allegations with respect thereto.

The record discloses that a motion by the husband to dismiss the complaint for lack of jurisdiction in the court and for failure to comply with N.J.S. 2A:34--24, N.J.S.A. was made returnable on the same day as the pendente lite application. Apparently this motion was made and denied, although the appendix contains no order to that effect.

Specifically the ground for the motion was that under the statute, N.J.S. 2A:34-- 24, N.J.S.A., the court does not have jurisdiction in a maintenance action unless the complaint alleges particularly that the abandonment by the husband was 'without justifiable cause.'

After all of the wife's proof in support of her action had been introduced the motion seems to have been renewed. There was no express ruling thereon but plainly the court intended to permit his original determination to stand.

The evidence in Mrs. Urian's case generally followed the outline set out in the complaint and in the more detailed affidavits. It showed her departure from the marital home in November 1951, following the pursuit of a course of conduct by the husband which she claimed constituted such extreme cruelty as justified her leaving.

She testified particularly that on September 23, 1952, thinking that the ten months of separation might have brought about a change in her husband's attitude, she went to his home and sought a reconciliation. However, he refused, saying he preferred to live alone.

Evidence was introduced also that three days later, on September 26, 1952, she wrote to him, saying:

'I was glad to see you on Tuesday night even though I didn't get a very warm reception.

'I guess it was pride that kept me from seeing you before and telling you that I still love you and forgive you. I am willing to forget all that has happened.

'As I told you I want to come home. I have been very unhappy since I left. At the time I thought getting out would solve my problems but it did nothing but cause me sleepless nights.

'After all Tom, you left me three times and I always was glad to give you another chance, I admit I made a mistake, I hope you will be as generous. If it is up to me, you will never be sorry.

'Please let me hear from you.'

Further testimony was offered to establish that a nephew of the wife unsuccessfully visited Urian on November 25, 1952, in an effort to bring the parties together.

In defense of the action the husband gave at considerable length his version of their stormy marital life. His wife's proof on the subject of her reconciliation efforts beginning on September 23, 1952 was fully discussed. He admitted the visit but denied that any discussion about her return took place. His statement was that she told him she could get a divorce and he replied that he did not see how, because she had left him. However, she did not say she was going to seek a divorce. When he asked for the purpose of her visit, she said she just wanted to see 'what was going on here.'

It was admitted that he received the letter of September 26th. No answer was sent because he did not believe the request was sincere. The nephew's visit was conceded also, but Urian said reconciliation was not mentioned. The subject broached was support for his wife, which he declined to discuss, saying that the matter was in the hands of their respective attorneys.

Likewise he conceded that following the November 1951 saparation, he made no efforts toward reconciliation because he felt that they would be wasted. In fact after she left he had the lock changed on the entrance door of their apartment so that she could not get in.

At the close of the defense, counsel for the wife moved to amend paragraph 21 of the complaint to read:

'In the month of November 1952, the defendant abandoned the plaintiff without any justifiable cause, has separated himself from her and failed, neglected and refused to provide for her support and maintenance, and he still fails, neglects and refuses to provide for her support and maintenance.'

When the motion was made there was no claim of surprise or application for continuance in order to obtain further proof or to enable the husband to meet such allegation. The objection was predicated upon the same ground as was urged for the dismissing of the complaint originally, namely, lack of jurisdiction because of absence of the allegation that the abandonment was without justifiable cause. Undoubtedly this ground was the only one presented because the subject of the abandonment, which began with the wife's effort at reconciliation on September 23, 1952, and which was brought to a head by the nephew's...